President Biden attacks Israel over judicial reform, again

Biden’s meddling in internal Israeli politics is inappropriate and unwelcome.

U.S. President Joe Biden with Israeli President Isaac Herzog during a ceremony at the President's Residence in Jerusalem, July 14, 2022. Credit: Yonatan Sindel/Flash90.
U.S. President Joe Biden with Israeli President Isaac Herzog during a ceremony at the President's Residence in Jerusalem, July 14, 2022. Credit: Yonatan Sindel/Flash90.
James Sinkinson
James Sinkinson
James Sinkinson is president of Facts and Logic About the Middle East (FLAME), which publishes educational messages to correct lies and misperceptions about Israel and its relationship to the United States.

Even as Israeli president Isaac Herzog gave his inspiring speech to the U.S. Congress—which generated some 30 standing ovations—there lurked a treacherous effort by President Joe Biden to undermine the Jewish state and placate his ultra-progressive base.

A Thomas Friedman column in The New York Times stated to the world that Biden harshly disapproves of Benjamin Netanyahu’s government and its attempt to democratize Israel’s judiciary. The White House also confirmed that Biden had delivered the same warning directly to Netanyahu. 

Given that Israel’s judicial reform is an internal affair that doesn’t affect the United States—and also because the administration has not similarly criticized other U.S. allies—Biden’s message is clearly inappropriate. It also reflects the president’s ignorance of the Israeli judicial system and the urgent need to reform it.

Contrary to reports in most mainstream U.S. media—and much of the media in Israel—Israel’s judiciary is not in the least democratic: Unlike in the United States, Israeli voters and elected officials have no control over who sits on the court, what it can judge, or the criteria on which it decides issues. It is a runaway train.

Reforms proposed by Netanyahu’s government are designed not to eliminate the independence of the judiciary, but to make Israel’s justice system democratically accountable and curb its near limitless power to override the will of elected representatives.  

Making no effort to hide its contempt for Netanyahu’s democratically elected government, Biden calls it the “most extreme” Israeli government he’s ever seen. 

Ironically, Biden recently made similar statements impugning the legitimacy of the U.S. Supreme Court. Following recent court decisions, he said, “It’s done more to unravel basic rights and basic decisions than any court in recent history.”

Clearly, Biden’s commentary on Israeli internal politics is unbefitting of America’s greatest ally in the Middle East. Moreover, though Israeli prime ministers are typically invited to the White House immediately after a new U.S. president takes office, Biden has issued no such invitation. 

Given the media coverage of Israel’s judicial reform, Americans could be forgiven for believing that Israel’s “radical” government wants to disarm, if not devastate, its independent Supreme Court. Nothing could be further from the truth. 

One Israeli opponent of Israel’s judicial reform told me, “I prefer a dictatorship of the judiciary to a dictatorship of the politicians.” In essence, he was saying, “I trust the leftist Supreme Court to keep the rightist government in check.”

While his trust is sound, based on decades of left-leaning Supreme Court decisions impinging on Israel’s legislature, the judiciary is not democratic. Indeed, while Israel’s Supreme Court well fits the definition of dictatorship, its government is and has been always duly, democratically elected.

U.S. Supreme Court Justices are nominated by an elected official—the president—and confirmed by the Senate—a chamber of elected officials. In Israel, by contrast, Supreme Court justices are chosen by a Judicial Selection Committee of nine individuals, which is controlled by non-elected officials and has consistently appointed left-leaning judges—overwhelmingly Ashkenazi and non-religious. 

The Netanyahu government—composed of many religious members, as well as Jews with Middle Eastern heritage—wants to give elected representatives authority to appoint judges, just as in the United States. 

In fact, no other democratic country allows supreme court justices to choose their own successors. While this reform may weaken Israel’s judicial dictatorship, it doesn’t eliminate its independence, any more than the U.S. system does America’s.

Israel’s judicial dictatorship also enjoys other privileges that will boggle the American mind. Critics accuse the government’s judicial reform of decimating democratic checks and balances—when in fact the Israeli Supreme Court is subject to virtually none. 

In the United States, the Constitution limits the power of the Supreme Court, allowing it to override only those decisions of elected officials that are unconstitutional. In contrast, Israel’s Supreme Court has the power to strike down any decisions of elected officials—from ministerial appointments to military strategy—whether defined by law or not.

Even more egregious, Israel’s Supreme Court has the power to override any legislative decisions based on a blatantly subjective criterion—“reasonableness.” Very simply, if the court sees something it believes is “unreasonable,” it may strike it down. 

The most recent use of this criterion was a Supreme Court order that Netanyahu dismiss Arye Deri—an elected member of the Knesset—from his cabinet this past January due to prior criminal convictions… though no law prohibited him from serving. Courts in the United States are not permitted to intervene in such appointments unless they are unlawful. 

On Monday, Netanyahu’s government amended the law so its undemocratic judicial body cannot simply strike down decisions of elected officials because they personally judge them “unreasonable.”

Above all, despite the hysteria emanating from the White House and the New York Times, Netanyahu’s effort to reform the system is proceeding in a manifestly democratic fashion. 

Indeed, Netanyahu’s democratically elected government has made utmost efforts to reach a consensus on judicial reform. Unfortunately, opposition parties walked out of the talks. No surprise that Netanyahu carried on with the legislation—a relatively modest effort to eliminate reasonableness-based judicial vetoes of ministerial and administrative appointments made by elected officials.  

While Biden has insisted that the Netanyahu government achieve consensus with the opposition on its judicial reform measures, he apparently forgets that when President Obama wanted to make a treaty with Iran in 2015, he did it without any congressional approval. 

Biden is also surely aware of massive demonstrations in France recently protesting the move by French president Emmanuel Macron to raise the retirement age by two years… without approval by parliament. Yet Biden has issued no condemnations about the lack of French consensus.

In short, Biden’s meddling in internal Israeli politics is inappropriate and unwelcome. What’s more, given Biden’s apparent approval of Obama’s unilateral implementation of a manifestly unpopular Iran deal, and given Biden’s silence in the face of Macron’s nonconsensual end-run around French democracy, the president’s criticism of Israel is the height of hypocrisy.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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